A federal magistrate judge issued a noteworthy decision yesterday in Mwani v. Al Qaeda—a case filed several years ago by victims of the 1998 truck bombing of the U.S. Embassy in Nairobi, Kenya. Six Kenyan nationals alleged jurisdiction under the Alien Tort Statute (ATS) and asserted claims for wrongful death, assault, and battery. The court found Al Qaeda liable on two of the claims and awarded compensatory and punitive damages.

Two aspects of the decision seem significant. First, the court reaffirmed a prior holding that jurisdiction was appropriate even under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, which established that ATS jurisdiction is available only for claims that “touch and concern the territory of the United States” with “sufficient force” to displace the presumption against the extraterritorial application of U.S. law. The magistrate judge concluded that Mwani satisfied Kiobel because Al Qaeda carried out part of the planning within the United States and directed the attack against the U.S. Embassy and its employees. It’s fairly common for an ATS case not to survive Kiobel these days, but the conclusion here seems reasonable.

Second, the court found Al Qaeda liable to the six victims based on the common law of assault and battery. This part of the decision is more problematic. The ATS provides for federal jurisdiction over “any civil action by an alien for a tort,” but only when that tort is “committed in violation of the law of nations or a treaty of the United States.” The question, then, is not simply whether the defendant’s conduct is tortious, but whether it’s tortious as a matter of international law. In this analysis, domestic common law is relevant only as the vehicle by which a violation of international law becomes actionable. Pure common law tort claims are simply disallowed. Indeed, not even all claims resting on international law are actionable. As the Supreme Court explained in Sosa v. Alvarez-Machain, the ATS provides jurisdiction only for claims that “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century” international prohibitions on the violation of safe conducts, infringement of the rights of ambassadors, and piracy. For the Mwani plaintiffs to prevail, they have to show not only that international law prohibits assault and battery, but that those prohibitions are widely accepted and clearly defined. They didn’t do this, and I’m skeptical that they could.

The court appears to have considered ATS jurisdiction appropriate because another judge previously concluded that the “attack on the United States Embassy in Nairobi, Kenya alleged in Plaintiffs’ Complaint impinged the diplomatic mission of the United States and directly infringed on the rights of ambassadors.” But as I understand it, that’s not how it works. The issue is not whether any aspect of the defendant’s conduct amounts to a tort in violation of international law, but whether the defendant’s conduct vis-à-vis the plaintiffs amounts to such a tort. None of the plaintiffs was a U.S. ambassador or employee of the U.S. Embassy, and the basis for their claims is not injury to the ambassador but rather themselves, so the international law on the protection of ambassadors has no bearing on the merits of their claims. Exercising ATS jurisdiction in these circumstances is analogous to using federal question jurisdiction to adjudicate a standard state-law tort claim on the reasoning that a third party could’ve brought a federal claim arising out of the same incident. That doesn’t happen.